Citation Nr: 1531692
Decision Date: 07/24/15 Archive Date: 08/05/15
DOCKET NO. 11-00 848 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon
THE ISSUE
Entitlement to an effective date prior to April 12, 2002 for the grant of service connection for posttraumatic stress disorder (PTSD) with a history of substance abuse.
REPRESENTATION
Appellant represented by: Joseph R. Moore, Attorney at Law
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Counsel
INTRODUCTION
The Veteran served on active duty from April 1969 to July 1970.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which granted service connection for PTSD with a 70 percent disability evaluation effective April 12, 2002. By way of a December 2012 notice of disagreement, the Veteran contested the effective date assigned, arguing that his effective date should be the date of his original claim for "nervousness" filed on June 1972.
The Veteran testified before a Veterans Law Judge (VLJ) in September 2006 with respect to his application to reopen service connection for PTSD. In April 2007, the Board reopened the claim and remanded the matter for further evidentiary development. The Veteran did not request a new Board hearing with respect to the issue on appeal (effective date of service connection).
A review of the Virtual VA paperless claims file and Veterans Benefits Management System (VBMS) reveals that, other than a May 2014 VA medical opinion, which was considered by the RO in the August 2014 Supplemental Statement of the Case (SSOC), documents therein are duplicative of those in the paper claims file or irrelevant to the issue before the Board. The Veteran's representative submitted additional medical evidence on behalf of the Veteran after the aforementioned SSOC; however, RO consideration of the evidence has been properly waived at this time.
The Veteran's claim was previously before the Board in February 2014. Following completion of the requested development, a supplemental statement of the case was issued in August 2014. The claim was returned to the Board.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT
1. The claim of entitlement to service connection for PTSD with a history of substance abuse was granted following an application to reopen which was received by the RO on April 12, 2002.
2. In July 1972, the RO denied entitlement to service connection for nervousness and paranoid schizophrenia.
3. In June 1994, the Veteran submitted a claim of entitlement to service connection for PTSD.
4. Multiple rating decisions were issued denying service connection for PTSD on the basis that there was no evidence of record showing that the Veteran had ever been diagnosed with PTSD; the June 1995 rating decision became final.
5. Applications to reopen the claim for service connection for PTSD were denied in May 1997 and September 1997.
6. A June 1999 private treatment report shows a diagnosis of PTSD based on the Veteran's period of service in Vietnam; this record was received by VA in May 2002.
7. In a July 2003 rating decision, the RO denied the Veteran's application to reopen; the Veteran perfected an appeal and an April 2007 Board decision reopened and remanded the claim of entitlement to service connection for PTSD.
8. Additional service documents were added to the file.
9. The Veteran did not have PTSD prior to April 12, 2002.
CONCLUSION OF LAW
The criteria for an effective date earlier than April 12, 2002 for the grant of entitlement to service connection for PTSD with a history of substance abuse have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.102, 3.156(c), 3.400 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.
In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in May 2007, June 2009, and May 2014, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits; the Veteran's claim for an earlier effective date is downstream from his claim for service connection. Nevertheless, the letters explained the evidence necessary to substantiate a claim for an earlier effective date, as well as the legal criteria for such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004).
VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4).
The claims file contains the Veteran's available service treatment records, reports of VA and private post-service treatment, the Veteran's own statements in support of his claim, and VA examination reports.
The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met.
Earlier Effective Date
Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1).
A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p) (2014).
Background
The Veteran filed a claim for service connection of nervousness/paranoid schizophrenia. The RO determined that the current diagnosis was a personality disorder and denied the claim in July 1972 on the basis that this was not a ratable disability under VA regulations. In June 1994 and January 1995, the Veteran filed a claim for service connection for PTSD. Rating decisions in June 1995 and October 1995 denied service connection for PTSD on the basis that there was no evidence of record showing that the Veteran had ever been diagnosed with PTSD; again it was determined that the Veteran had a personality disorder. The 1995 RO rating decisions became final. The Veteran filed applications to reopen the PTSD claim in May 1997 and July 1997; no new and material evidence was submitted and the RO informed the Veteran that his applications could not be considered in May 1997 and September 1997, respectively.
The Veteran filed an application to reopen his claim of service connection for PTSD in April 2002. He presented evidence demonstrating a diagnosis of PTSD in 2003, including a June 1999 treatment record from the Portland Clinic, and the claim was subsequently reopened and remanded by the Board in April 2007.
Further RO development yielded confirmation of the Veteran's reported stressors and as a result he was granted PTSD in a July 2009 rating decision; an effective date of April 12, 2002 was assigned.
The Veteran asserts that he has had PTSD since service (e.g., his in-service diagnosis of a pathologic personality was actually a manifestation of his PTSD). He further argues that since VA had constructive possession of federal records confirming his stressors prior to the April 2002 application to reopen, which should have been obtained and considered in connection with his original claim for service connection in 1972, and thus 38 C.F.R. § 3.156(c) entitles him to an effective date earlier than 2002.
In this regard, and in consideration of Vigil v. Peake and 38 C.F.R. § 3.156(c), the Board obtained a medical opinion in an attempt to ascertain if and when the Veteran suffered from PTSD prior to April 2002. The May 2014 VA examiner concluded that it was less likely than not that the Veteran had PTSD prior to April 12, 2002. The VA examiner acknowledged the May 2011 letter from the Veteran's private physician, Dr. C, wherein Dr. C asserted that the Veteran had PTSD prior to April 12, 2002, but had been misdiagnosed and had PTSD all along; according to the VA examiner, Dr. C's opinion was circular in that it relies on the diagnosis provided at the reopening of the claim to justify saying that the Veteran's PTSD existed before 2002. The VA examiner stated that he disagreed with the diagnosis of PTSD and the grant of service connection for the Veteran's PTSD; the VA examiner noted that the Veteran's stressor reports at the 1995 VA social and industrial and PTSD examinations were inconsistent with each other and those reported elsewhere and thus found the reports of stressors to be an unreliable basis for the diagnosis of PTSD.
VA received unit records in relation to the Veteran's application to reopen his previously denied claim for service connection of PTSD. However, these records are not specific to the Veteran. Nonetheless, it is unclear whether such records are contemplated by 38 C.F.R. § 3.156(c), pertaining to reconsideration. As such, the Board will consider the Veteran's claim under both 38 C.F.R. § 3.156(c) and the traditional rule regarding finality.
Traditional Finality
In this case, the grant of service connection for PTSD with a history of substance abuse was based on a claim to reopen that was received on April 12, 2002. In his April 2002 claim, the Veteran specifically stated that he wanted to reopen his claim for PTSD. The Veteran disagrees with the assigned effective date; his representative argues that the effective date for the grant of PTSD is incorrect, and that the correct effective date should be in 1972.
Generally, the effective date of an award based on a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. See 38 U.S.C.A. § 5110(a); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009)("The earliest effective date for an award based on a veteran's request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed"). There are exceptions to this general rule, in 38 U.S.C.A. § 5110, but none are applicable in this case, as shown below.
As there was no communication or submission of evidence from the Veteran evincing an intent to apply for benefits or identifying the benefits sought between the September 1997 letter from the RO indicating that the Veteran would need to submit new and material evidence with his application to reopen the claim for service connection and the April 12, 2002 application to reopen, an earlier effective date is not warranted. The Board points out that, to the contrary, there are no communications other than those pertaining to the status of the Veteran's dependents and income related to his claim for nonservice-connected pension. Thus, an earlier effective date based on a prior, pending, unadjudicated claim or submission of new and material evidence within the one year appeal period is unavailable. Id.
In addition, entitlement to service connection for PTSD was not based on any act or administrative issue, see 38 U.S.C.A. § 5110(g), 38 C.F.R. § 3.114, and an earlier effective date is therefore not warranted on this basis, or on the basis of any other exception when granting entitlement to service connection for a disability in response to an application to reopen a claim that had previously been denied. Here, the inclusion of PTSD in the rating schedule is considered a liberalizing law. However, in order to an establish an effective date based on 38 U.S.C.A. § 5110(g), it must be established that the Veteran had PTSD prior to the liberalizing law. The Board acknowledges the statements provided by the Veteran's family, indicating that the Veteran had symptomatology suggestive of PTSD prior to the issuance of the diagnosis of PTSD; these family members are competent to describe observed symptomatology. However, these statements, in light of a review of the entire record, do not serve to demonstrate that the Veteran had PTSD prior to the change in the rating schedule or prior to the most recent, April 12, 2002 application to reopen.
Despite an apparent conflict in the evidence, the overwhelming evidence establishes that the Veteran did not have PTSD prior to the change in the rating schedule. The contemporaneous records established that the Veteran had a personality disorder. Although Dr. C recently determined that the Veteran had been misdiagnosed, a far more convincing VA opinion concluded that the Veteran did not have PTSD. The VA opinion is consistent with the earlier, contemporaneous evidence. As such, the VA opinion is more credible and convincing than the opinion of Dr. C and the Veteran's attempts at self-diagnosis. To the extent that the private examiner determined that all other diagnoses were incorrect, we find that there is a remarkable consistency in the prior reports. We have accorded the opinion of Dr. C. all the probative weight that it is due and find the reasoning to be unconvincing. In short, the preponderance of evidence establishes that the Veteran did not have PTSD prior to the change in the rating schedule (or at any time prior to the effective date selected by the RO)..
To the extent that the Veteran, through his representative, argues that the June 1999 report from the Portland Clinic, showing a possible diagnosis of PTSD, or VA treatment records showing treatment for substance abuse, warrant an earlier effective date for the grant of service connection for PTSD, the fact remains that the first diagnosis was in a June 1999 treatment report received in May 2002, after the April 12, 2002 application to reopen. To the extent that the Veteran, through his representative, argues that the RO had constructive receipt of the Veteran's service personnel records, confirming the Veteran's PTSD stressor event, the Board finds that, even if such records were available earlier, the fact remains that no diagnosis of PTSD was of record, and no relevant symptomatology was demonstrated, prior to the June 1999 Portland Clinic report, which was received after the April 12, 2002 application to reopen.
Reconsideration
Section 3.156(c) is an exception to the general rule in § 3.156(a), which only permits claims to be reopened on the submission of new and material evidence. Section 3.156(c) also provides for different effective dates in certain conditions.
In contrast to the general rule, § 3.156(c) requires the VA to reconsider a veteran's claim when relevant service department records are newly associated with the veteran's claims file, regardless of whether these records are "new and material" under § 3.156(a). 38 C.F.R. § 3.156(c)(1) (noting that § 3.156(c) applies "notwithstanding paragraph (a)"); New and Material Evidence, 70 Fed. Reg. 35,388, 35,388 (June 20, 2005). This ensures that a veteran is not denied benefits due to an administrative error. See New and Material Evidence, 70 Fed. Reg. at 35,389. In other words, § 3.156(c) serves to place a veteran in the position he would have been had the VA considered the relevant service department record before the disposition of his earlier claim.
Section 3.156(c) includes three parts relevant to this appeal. Subsection (c)(1) states that the VA must reconsider a veteran's claim for benefits based on newly associated service department records at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c)(1).
Subsection (c)(3) establishes that the effective date for any benefits granted as a result of reconsideration under subsection (c)(1) is the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 § C.F.R. 3.156(c)(3).
Finally, a retroactive date of entitlement under subsection (c)(3) is permitted where new evidence from the service department clearly supports the assignment of a specific rating over a part or the entire period of time involved, except as it may be affected by the filing date of the original claim. 38 § C.F.R. 3.156(c)(4).
Assuming the unit records obtained by the RO are those contemplated by the provisions of 38 C.F.R. § 3.156(c), the Board will consider whether these provisions assist the Veteran. In this regard, the Board observes that the Federal Circuit, in Blubaugh v. McDonald, 773 F.3d 1310 (2014), provides guidance. Although the specific holding of Blubaugh is inapplicable, the guidance as to 38 C.F.R. § 3.156(c) applies to any case where reconsideration may be warranted.
Reconsideration is an exception to finality. In such a case, the language of § 3.156(c) strongly suggests that § 3.156(c)(1) requires the VA to reconsider only the merits of a veteran's claim whenever it associates a relevant service department record with his claims file, so long as the service record was unavailable when the veteran's claim was filed. Only if the VA grants benefits resulting from reconsideration of the merits under § 3.156(c)(1) must it consider an earlier effective date under subsections (c)(3) and (c)(4).
Here, as previously discussed, VA originally denied the Veteran's claim for service connection of PTSD because he had not been diagnosed with the disorder. In 2002, VA obtained and considered the newly discovered unit records.
However, nothing in section 3.156(c ) or the holding in Vigil demands an effective date as of the date of the initial claim. The regulation merely requires reconsideration of the decision. Here, as stated above, the evidence establishes that the appellant did not have PTSD in 1972 or at the time of any of the other claims. As noted in the regulation, an effective date when addressed as reconsideration is the date entitlement arose or the date VA previously decided the claim, whichever is later. Here, because the appellant did not have PTSD at the time of the prior decisions, the date entitlement arose (the later date) is the controlling effective date.
Regardless of whether the issue is considered as a generic earlier effective date, an application to reopen, reconsideration under 38 C.F.R. § 3.156(c) or Vigil, or under a liberalizing law or VA issue, the result remains the same. Based upon the facts found, the Veteran did not have PTSD at an earlier time and is not entitled to an earlier effective date.
Conclusion
Therefore, under the laws and regulations pertaining to effective dates, the April 12, 2002 date of the application to reopen that was granted is the appropriate effective date for the grant of entitlement to service connection for PTSD with a history of substance abuse in this case.
ORDER
The claim of entitlement to an earlier effective date for service connection for PTSD is denied.
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs